Central Administrative Tribunal - Jabalpur
Ajay Jaiswal vs The Union Of India on 6 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH JABALPUR ORIGINAL APPLICATION NO.412 OF 2007 Jabalpur, this the 6th day of February, 2009 HONBLE MR. MUKESH KUMAR GUPTA, JUDICIAL MEMBER HONBLE MR.N.D.DAYAL, ADMINISTRATIVE MEMBER Ajay Jaiswal, S/o late G.P.Jaiswal Aged about 24 years R/o In front of Boys ITI Madhotal, Jabalpur-482001 (M.P) - Applicant (By Advocate Shri S.Nagu) V e r s u s 1. The Union of India, Though its Secretary Deptt. of Defence Production & Supplies Ministry of Defence, South Block, New Delhi. 2. Chairman-Director General Ordnance Factory Board, 10-A Shaheed S.K.Bose Marg, Kolkata. 3. Senior General Manager, Vehicle Factory, Jabalpur - Respondents (By Advocate Shri S.K.Mishra) O R D E R
By Mukesh Kumar Gupta, JM.-
Validity of termination order dated 19th June, 2006 (A-13) is challenged in present case. He seeks reinstatement with retrospective effect having all consequential benefits along with costs.
2. Admitted facts are G.P.Jaiswal, Machinist (Skilled), Vehicle Factory Jabalpur died in harness on 10.7.1998 leaving behind his widow, two major daughters and applicant herein who was minor at that point of time. On attaining majority, applicant was appointed as LDC on compassionate grounds vide order dated 24.10.2001 (A-1) w.e.f. 6.10.2001. In terms of offer of appointment, he was placed on two years probationary period, which period was extended from time to time, lastly vide order dated 24.11.2005. Since his performance during the probationary period was not found satisfactory, his services were terminated vide office order dated 19.6.2006, which is challenged in present OA. Being aggrieved he had preferred an appeal dated 14.10.2006 addressed to respondent No.2, which had not been forwarded by the respondent No.3 stating that provisions of CCS (CCA) Rules, 1965 do not contemplate an appeal against an order of termination of a probationer. Shri S. Nagu, learned counsel contends that the impugned order is vitiated being perverse as his services during the last appraisal year 1.4.2004 to 31.3.2005 being average/ satisfactory, could not have been dispensed with on the ground of unsatisfactory probationary period. The concerned authority ignored the vital fact that he had been appointed on compassionate grounds. Further contention raised was that said termination order though worded innocuously is actually penal in nature as same is grounded for reasons which are not existing.
3. MA 704/2008 was filed seeking production of records and similarly MA 87/2009 was filed placing certain documents on record. Learned counsel also pointed out that as per communication dated 3.3.2006 (A-11) his services were found to be average and not unsatisfactory and, therefore, there had been a mark improvement in his performance.
4. Contesting the claim laid and by filing reply it was stated that on his appointment on compassionate grounds, he was posted in three different sections from time to time, Bill Group, Labour Bureau and the MM Section. For continuous three years his ACRs were graded below average/ average, which fact had been communicated to him. He was regularly informed of his short comings, which he duly acknowledged. Despite advice to improve his performance and providing ample opportunities, he failed to improve upon his work. Since guidelines provide that probationer should be given an opportunity to work under more than one officer during period of probation and report of his work be obtained from each of these officers, his posting has been changed from time to time. Despite extending his probationary period four times, he did not show any improvement in his performance and, therefore, his case was placed before a Board of Officers, consisting of senior rank officers, who did not find him fit for retention in service. Permission granted to him to appear in B.Sc. and Post-graduation examinations has no nexus with the issue involved in present case. Competent authority even remarked that he was not showing any signs of improvement in spite of repeated advice. He was graded below average and vide communication dated 17.10.2004(R-5) it was observed that he : has not shown any keen interest in his work, as he is very slow in his work. It is noted that the individual is not capable of performing his entrusted job. Shri S.K.Mishra, learned counsel vehemently urged that he has no right to the post, and since despite repeated opportunities he did not improve his performance, no illegality was committed while passing impugned orders. Further more, said termination order is not a penalty against which any statutory appeal can be filed and, therefore, the respondent No.3 was justified in declining to forward his appeal dated 14.10.2006 to higher authority. Reliance was also placed on coordinate Bench order dated 25.11.2008 in OA No.191/2007, Deepak Kumar Balmik Vs. Union of India & others.
5. Shri S.K.Mishra learned counsel further contended that the termination order was based on Para 2(b) of his appointment order. Further more, applicant being a probationer had no right to hold the post. Our attention was drawn to Explanation (viii) to Rule 11 of CCS (CCA) Rules, 1965 which clarifies that under termination of service during the period of probation in accordance with terms of his appointment shall not amount to penalty within the meaning of said rules. Reliance was also placed on AIR 2005 SC 2960 (State of Punjab and others Vs. Sukhwinder Singh) wherein it has been held as under:
The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. a probationer is on test and a temporary employee has no right to the post.
6. We have heard learned counsel of parties and perused the pleadings very carefully.
7. The question which arises for consideration is whether Article 311 of the Constitution of India is attracted or not in present case. It is well settled law that a probationer has no right to hold a post. The period of probation furnishes a valuable opportunity to the master to closely observe the work of a probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his services. In Oil & Natural Gas Commission Vs. Dr.Md.S.Iskander Ali, AIR 1980 SC 1242 it was held as under:-
Where the short history of the service of the probationer appointed in a temporary post clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that was why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him and in these circumstances, if the appointing authority considered it expedient to terminate the services of the probationer it could not be said that the order of termination attracted the provisions of Article 311, when the appointing authority had the right to terminate the service without assigning any reason.
In Krishnadevaraya Education Trust and another Vs. L.A.Balakrishna, (2001) 9 SCC 319 it was held that a probationer is on test and if his services are found not be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services. The mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were terminated by way of punishment.
8. We may observe that there is no quarrel to the legal principle that temporary government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employee despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a months notice without assigning any reason either in terms of the contract of the service or under the relevant statutory rules regulating the terms and conditions of such service.
9. In Chandra Prakash Shahi Vs. State of UP and others, 2000 SCC (L&S) 613 it has been observed that efficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was founded on those factors or other disqualifications. Similarly, following Parshotam Lal Dhingra Vs. Union of India, AIR 1958 SC 36 in State of Bihar Vs. Gopi Kishore Prasad, AIR 1960 SC 689 it was held that the termination order would not become punitive merely because of an antecedent inquiry but the real object or purpose of the inquiry had to be found out whether it was held merely to assess the general unsuitability of the employee or it was held into charges of misconduct or inefficiency etc.
10. Thus, it is well settled that termination simpliciter on the ground of unsuitability does not attract provisions of Article 16 nor is the protection under Article 311(2) of the Constitution available to a temporary government servant unless the termination involved stigma. The difference between the motive and foundation has been clearly spelt out in Chandra Prakash Shahis case(supra).
11. Examining the case at hand in the context of aforesaid settled law, we may observe that impugned order in the present case does not caste any stigma for his future employment and it is an innocuous termination order, contents of which read as under:
Performance of Shri Ajay Jaiswal LDC/VMM,Per.No.047530 during the probationary is not found satisfactory.
Accordingly, his service is terminated and his name is Struck-off the strength of this factory w.e.f. 19.06.2006 (AN)
12. A bare perusal of aforesaid order would reveal that it is an order of termination simplicitor casting no stigma. Performance report submitted for the period 1.4.2004 to 31st March, 2005 (A-11) reveals that he was graded average under various heads, which can not be termed as marked improvement in his performance over earlier years performance, as projected.
13. We have also perused the original records produced by the respondents including ACR dossier, which corroborates the stand taken in the reply that various show-cause notices were issued. He was warned on couple of occasions. He was also advised to improve his performance. His probationary period was extended four times. Despite all these repeated opportunities provided to applicant, he failed to improve his performance and virtually paid no heed to the same. In these circumstance we are of the considered view that the respondents were well within their power, authority and jurisdiction to terminate his services. There is no illegality or arbitrariness in the impugned order dated 19.6.2006. We find no justification in the various contentions raised by the applicant.
14. For the discussion made hereinabove, and finding no merits, OA is dismissed. No costs.
(N.D.Dayal) (Mukesh Kumar Gupta) Administrative Member Judicial Member rkv